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2016 DIGILAW 1503 (GUJ)

Ramanan Ramdas Naidu v. Union of India

2016-07-27

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for writ, order or directions to quash and set aside judgment and order dated 20.11.2015 passed by learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad, by which the learned Tribunal has rejected Original Application No. 59 of 2012 preferred by the petitioner, original applicant. 2. The facts leading to filing of the present petition in nutshell are as under: 3. While the petitioner was serving as a Goods Train Driver the departmental inquiry was initiated against him. He was charge-sheeted for some incident. That after conclusion of the departmental inquiry, the disciplinary authority inflicted penalty of voluntary retirement. The petitioner filed a statutory appeal before the appellate-authority, ADRM, Ahmedabad, who, taking a lenient view, modified the order of the disciplinary authority of compulsory retirement and awarded the punishment of reduction in rank to Diesel Mechanic Grade-III in pay-scale of Rs. 3050-4590 for a period of three years with cumulative effect vide order dated 19.10.2015. 4. The petitioner preferred a revision petition before the revisional authority, which came to be rejected. That the petitioner thereafter approached the learned Tribunal by filing Original Application No. 385/2006. That the said original application came to be disposed of vide order dated 22.09.2009 and the matter was remitted to the revisional authority to re-examine the revision petition. That thereafter the revisional authority re-considered the revision petition of the petitioner and passed a fresh order on 23.12.2009 and reduced the level of punishment from reduction in rank to Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of three years with cumulative effect to Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect. 5. Despite the above lenient view taken by the revisional authority, again the petitioner approached the learned Tribunal by way of filing Original Application No. 140 of 2010. 3050-4590 for a period of three years with cumulative effect to Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect. 5. Despite the above lenient view taken by the revisional authority, again the petitioner approached the learned Tribunal by way of filing Original Application No. 140 of 2010. Though the learned Tribunal vide order dated 09.03.2011 passed in O.A. No. 140/10 observed that quantum of penalty cannot be subject matter which can be agitated before the learned Tribunal, the learned Tribunal remanded the matter to the revisional authority with a direction to re-consider the matter whether the post on which the petitioner was ordered to be reverted can be said to be out of cadre post, as contended on behalf of the petitioner, and/or whether the post on which the petitioner has been reverted, he had any concern or not. Feeling aggrieved and dissatisfied with the order dated 09.03.2011 passed by the learned Tribunal in Original Application No. 140/10, the respondent-Department preferred Special Civil Application No. 8533/2011 before this Court and the learned Division Bench by order dated 12.07.2011 dismissed the said petition. That thereafter the revisional authority passed order dated 25.01.2012, impugned before the learned Tribunal, and confirmed the earlier order dated 23.12.2009 passed by the revisional authority of penalty imposed i.e. reduction as Diesel Mechanic, Grade-III, in the pay-scale of Rs. 3050-4590 (RPS) for a period of one year without cumulative effect. 6. Feeling aggrieved and dissatisfied with the order dated 25.01.2012 passed by the revisional authority, the petitioner again approached the learned Tribunal by way of filing Original Application No. 59/12 and by the impugned judgment and order dated 20.11.2015, the learned Tribunal has dismissed the said original application of the petitioner, original applicant, and has confirmed the order dated 25.01.2012 passed by the revisional authority reverting the petitioner to the post of Diesel Mechanic, Grade-III, in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.11.2015 passed by the learned Tribunal, the petitioner-original applicant has preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India. 7. Mrs. 3050-4590 for a period of one year without cumulative effect. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.11.2015 passed by the learned Tribunal, the petitioner-original applicant has preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India. 7. Mrs. Sunita Chaturvedi, learned advocate appearing on behalf of the petitioner, has vehemently submitted that the learned Tribunal has materially erred in not properly appreciating the fact that the petitioner was reverted to the post out of cadre. It is submitted that when lastly the petitioner was appointed as a Goods Train Driver it was a selection post (20% quota) and before that he was working as Shunter. It is further submitted by Mrs. Chaturvedi, learned advocate appearing on behalf of the petitioner, that therefore reverting the petitioner to the post of Diesel Mechanic, Grade-III can be said to be out of cadre post, which is not permissible. It is also submitted that even the order passed by the revisional authority impugned before the learned Tribunal was contrary to the judgment and order dated 12.07.2011 passed by the learned Division Bench of this Court in Special Civil Application No. 8533 of 2011. Mrs. Chaturvedi, learned advocate appearing on behalf of the petitioner, has heavily relied upon the decision of Hon'ble Supreme Court of India in the case of Nyadar Singh & Anr. v. Union of India, reported in AIR 1988 SC 1979 , in support of her above submission. She has also drawn attention of this Court to the service record of the petitioner, more particularly Pages 63/A to 63/E of the petition in support of her above submissions, more particularly the submission that the petitioner has been reverted out of cadre. Making the above submissions, it is submitted by Mrs. Chaturvedi, learned advocate appearing on behalf of the petitioner, to admit/allow the present petition. 8. The present petition is vehemently opposed by Mr. Anal Shah, learned advocate appearing on behalf of the respondent-Department. It is submitted that as such the revisional authority had already taken a lenient view and initial penalty of compulsory retirement was converted into reduction in rank of the petitioner to the post of Diesel Mechanic Grade-III in the pay-scale of Rs. The present petition is vehemently opposed by Mr. Anal Shah, learned advocate appearing on behalf of the respondent-Department. It is submitted that as such the revisional authority had already taken a lenient view and initial penalty of compulsory retirement was converted into reduction in rank of the petitioner to the post of Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of three years with cumulative effect and thereafter the said penalty was further reduced, reverting the petitioner for the post of Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect. It is submitted that despite the above reduction, the petitioner had further challenged the said order. 9. It is further submitted by Mr. Shah, learned advocate appearing on behalf of the respondent-Department, that as such it cannot be said that the petitioner was reverted to the post which can be said to be out of cadre. It is submitted by Mr. Shah, learned advocate appearing on behalf of the respondent-Department, that the petitioner was serving as Khalasi, thereafter he was promoted to the post of Diesel Mechanic, then he was promoted to the post of Assistant Driver and lastly he was promoted as Goods Train Driver. It is submitted by Mr. Shah, learned advocate appearing on behalf of the respondent-Department, that thereafter reverting the petitioner to the post of Diesel Mechanic Grade-III, on which the petitioner was earlier working, cannot be said to be out of cadre post and it cannot be said that the petitioner was not concerned with the said post on which he is reverted. 10. Now so far as contention on behalf of the petitioner that the order passed by the revisional authority, which was impugned before the learned Tribunal, can be said to be contrary to the directions issued by the learned Division Bench of this Court in Special Civil Application No. 8533 of 2011 is concerned, it is submitted by Mr. Shah, learned advocate appearing on behalf of the respondent-Department, that as such the learned Division Bench never gave any finding that reverting the petitioner to the post of Diesel Mechanic, Grade-III, can be said to be out of cadre. It is submitted by Mr. Shah, learned advocate appearing on behalf of the respondent-Department, that as such the learned Division Bench never gave any finding that reverting the petitioner to the post of Diesel Mechanic, Grade-III, can be said to be out of cadre. It is submitted by Mr. Shah, learned advocate appearing on behalf of the respondent-Department, that the learned Division Bench simply dismissed the petition confirming the earlier order passed by the learned Tribunal remanding the matter to the revisional authority. It is submitted by Mr. Shah, learned advocate appearing on behalf of the respondent-Department, that therefore the impugned order passed by the learned Tribunal cannot be said to be contrary to the finding recorded by the Division Bench of this Court in SCA No. 8533 of 2011. 11. Now so far as the reliance placed upon the decision of Hon'ble Supreme Court in the case of Nyadar Singh (supra) by learned advocate appearing on behalf of the petitioner is concerned, it is submitted that the facts of the said case shall not be applicable to the facts of the present case. Making the above submissions, it is submitted by Mr. Shah, learned advocate appearing on behalf of the respondent-Department, to dismiss the present petition. 12. Heard learned advocates appearing on behalf of the respective parties at length. 13. At the outset it is required to be noted that after completion of departmental inquiry and after having proved the charge/misconduct of the petitioner for passing Signal No. S-12 at KKF at danger on 16.07.2004 while working Light Engine Electric Locomotive No. 24559, the petitioner as such was imposed penalty of compulsory retirement. However, the appellate authority, taking a lenient view, reduced penalty imposed upon the petitioner from compulsory retirement to reduction in rank to the post of Diesel Mechanic Grade-III in pay-scale of Rs. 3050-4590 for a period of three years with cumulative effect. That the said penalty was further reduced to reverting the petitioner to the post of Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect. Therefore, as such, a lenient view was already taken by the revisional authority. Despite the above, the petitioner subsequently challenged even the subsequent order dated 23.12.2009 passed by the revisional authority, by which the petitioner was reverted to the post of Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect. Therefore, as such, a lenient view was already taken by the revisional authority. Despite the above, the petitioner subsequently challenged even the subsequent order dated 23.12.2009 passed by the revisional authority, by which the petitioner was reverted to the post of Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect. 14. It is the case on behalf of the petitioner that the petitioner was reverted to the post of Diesel Mechanic Grade-III, which is out of cadre post and, therefore, the petitioner could not have been reverted to the said post. The aforesaid submission has no substance. It is the case on behalf of the petitioner that as the post of Goods Train Driver was a selection post and the petitioner was appointed to the said post on 20% quota and, therefore, the petitioner could not have been reverted to the post of Diesel Mechanic Grade-III. The said submission has no substance. 15. It is required to be noted that the petitioner was initially appointed as Khalasi, thereafter as Diesel Mechanic and then he was promoted to the post of Senior Assistant Driver and thereafter as Shunter and lastly he was promoted to the post of Goods Train Driver. From the material on record, more particularly Page 63/E of the petition, which is part of the service record of the petitioner, it appears that the petitioner was promoted to the post of Goods Train Driver. Therefore, the petitioner was promoted to the post of Goods Train Driver and it was a promotional post. From the aforesaid documents it also appears that the petitioner was promoted from the post of Khalasi to the post of Goods Train Driver, which is evident from the said document. Considering the aforesaid facts and circumstances of the case, it cannot be said that the petitioner has been reverted to the post of Diesel Mechanic Grade-III, which is out of cadre post. If the said contention raised on behalf of the petitioner is accepted, in that case, the order passed by the revisional authority dated 23.12.2009 reducing penalty of reversion to the post of Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect would as such become redundant. If the said contention raised on behalf of the petitioner is accepted, in that case, the order passed by the revisional authority dated 23.12.2009 reducing penalty of reversion to the post of Diesel Mechanic Grade-III in the pay-scale of Rs. 3050-4590 for a period of one year without cumulative effect would as such become redundant. If it is the case on behalf of the petitioner that as the post of Goods Train Driver was a selection post and the petitioner was not promoted on the said post, in that case, the petitioner would never be reverted on any other post. Under the circumstances, the aforesaid submission on behalf of the petitioner cannot be said to be correct. 16. Now so far as reliance placed upon the decision of Hon'ble Supreme Court in the case of Nyadar Singh (supra) by learned advocate appearing on behalf of the petitioner is concerned, considering the said decision we are of the opinion that the case on hand, more particularly the above observations, would not apply to the facts of the present case. 17. Now so far as the contention on behalf of the petitioner that the order passed by the revisional authority, which was impugned before the learned Tribunal, was against the judgment and order dated 12.07.2011 passed by the learned Division Bench of this Court in Special Civil Application No. 8533 of 2011 is concerned, the aforesaid submission has no substance. When we call upon the learned advocate appearing on behalf of the petitioner to point out from the aforesaid order passed by the learned Division Bench of this Court that whether any finding was recorded by the learned Division Bench that the post of Diesel Mechanic, Grade-III, on which the petitioner was reverted is out of cadre post, learned advocate appearing for the petitioner has fairly conceded that as such there is no such finding in the said judgment and order passed by learned Division Bench of this Court. Even otherwise the learned Division Bench in Special Civil Application No. 8533 of 2011 has only dismissed the said petition confirming the earlier order passed by the learned Tribunal remanding the matter to the revisional authority. Under the facts and circumstances of the case, it cannot be said that the order passed by the revisional authority is contrary to the order passed by this Court in Special Civil Application No. 8533 of 2011. Under the facts and circumstances of the case, it cannot be said that the order passed by the revisional authority is contrary to the order passed by this Court in Special Civil Application No. 8533 of 2011. 18. In view of the above and for the reasons recorded hereinabove, we see no reason to interfere with the judgment and order dated 20.11.2015 passed by the learned Tribunal. Under the circumstances, the petition deserves to be dismissed and is accordingly dismissed. NOTICE discharged. No costs.